SECTION V TABULATION OF EXPERIENCE

The experience used for rating purposes shall be the individual risk experience valued at least three months prior to the rating date and reported in accordance with the provisions of the Delaware Workers’ Compensation Statistical Plan. It shall include Voluntary Compensation insurance, but shall exclude Maritime Employments and Employments under the Federal Employers’ Liability Act.

To determine the experience modification, the prescribed experience shall be tabulated by the DCRB on an approved rating form.

The audited payrolls or other exposures for each classification for the experience period shall be tabulated by policy years.

Incurred losses shall be tabulated by policy years in the manner indicated below.

1. 1. Losses as reported (indemnity, medical and total) shall be shown for each policy year. Losses incurred shall be on a gross basis before the application of the deductible, when such coverage is provided.
   2. Losses which are subject to average or limiting values, as provided in Rule 5 of this Section, shall be listed individually, showing the total cost of each case as reported and as used for rating purposes. Multiple injury accidents shall be identified in the appropriate column of the rating form.

Exception: All claims reported with Catastrophe Code No. 48 shall be excluded from experience rating calculations.  Refer to Delaware Workers Compensation Statistical Plan Manual, Section 2, C. 11. for definition of losses included under Catastrophe Code No. 48.

Exception: All claims reported with Catastrophe Code No. 12 with an accident date of December 1, 2019, through June 30, 2023, shall be excluded from experience rating calculations. Refer to Delaware Workers Compensation Statistical Plan Manual, Section 2, C. 11 for the definition of losses included under Catastrophe Code No. 12.

To prevent unreasonable increases in rate for accidents whose occurrence or severity is a matter of chance, a scale of values has been determined and is to be used in place of the actual cost of such accidents when the actual cost exceeds the limiting value. No single accident, whether to one or more persons, shall be used for rating purposes at a value greater than that shown in Table B, column (3).

No loss shall be excluded from the experience of a risk on the ground that the employer was not morally responsible for the accident that caused such loss.

It shall not be permissible to revise values because of department or judicial decision or because of developments in the nature of injury between two valuation dates except in cases:

1. 1. where loss values are included or excluded through mistake other than error of judgment,
   2. where a claim is declared non-compensable (see note below), or
   3. where the claimant or carrier has recovered in an action against a third party, or
   4. where a claim should have been reported with Catastrophe Code No. 48, or
   5. where a claim or a portion of a claim is ruled or officially declared fraudulent, or
   6. where a claim should have been reported with Catastrophe Code No. 12.

It shall be permissible to submit a revised reporting requesting adjustment of the affected ratings or ratings, provided such request is made within 24 months of the expiration of the period to which the experience modification applied.

If a case is expected to be open longer than 24 months, upon written application, properly filed with the DCRB by the insured, a further extension of 24 months may be granted, provided such request is made within 24 months of the expiration of the period to which the experience modification applied. Such application shall give notice to the DCRB that one of the allowable conditions (see above) for loss revision is still pending a final decision. In this event, the DCRB files for the risk involved will be preserved

Note: For purposes of this rule, the term “non-compensable” refers to:

1. 1. 1. an official ruling specifically holding that a claimant is not entitled to benefits under the provisions of the Delaware Workers’ Compensation Law.
      2. a case where no claim was filed during the period of limitation provided by the Delaware Workers’ Compensation Law for the filing of such claim and the carrier therefore closes the case.
      3. a case where the carrier contends, prior to the valuation date, that a claimant is not entitled to benefits under the Delaware Workers’ Compensation Law and the claim is officially closed because of the claimant’s failure to prosecute his claim.

1. 1. Pending Cases. When a negligence claim or suit has been instituted by a claimant against a third party, the procedure shall be as follows:

If the claim or suit against the third party has not been settled or finally adjudicated, the incurred loss shall be included in the rating, since failure to recover against a third party is no bar to compensation and the insurance carrier may eventually be obliged to indemnify the claimant in whole or in part for the loss sustained.

2. 2. Settled Cases. In cases where the carrier has received reimbursement under subrogation rights, or where the injured employee or his dependents have recovered from a third party, only the net losses shall be used in the rating and will not exceed the maximum accident limitation values in Table B, column (3).